Gov. John Hickenlooper speaks at a news conference at the Capitol Wednesday, where he announced that he was granting a temporary reprieve to death-row inmate Nathan Dunlap. (Craig F. Walker, The Denver Post)

[COLORADO EXECUTION]FILE--This is a file photo of convicted murderer Gary Davis, who faces execution by lethal injection in the Colorado State Penitentiary on Monday, Oct. 13, 1997 for the kidnapping, rape and murder of a Byers, Colo., woman on July 21, 1986. Davis will be the first person executed in Colorado since June 2, 1967, when Luis Jose Monge was put to death for the murder of his wife and three of his children. (AP Photo/Colorado Department of Corrections, HO) DEATH ROW

ROBERT KEITH RAY named in Gregory Vann's killing as well as in the deaths of Javad Marshall-Fields and Vivian Wolfe

SIR MARIO OWENS -- suspect in the murder of Gregory Vann. Also implicated in the deaths of Javad Marshall-Fields and Vivian Wolfe who witnessed the Vann murder.

Hickenlooper said he will lead the discussion, in town halls and statewide talks with local leaders — perhaps a poll on what people know and don’t know about capital punishment.

On what the conversation should include in the coming year, friend and foe alike joined Hickenlooper on a meaty list of death-penalty issues:

• Fairness. Is it possible to carry out a death sentence without bias in choosing the “worst of the worst”? Can America choose better than all the nations that have given up the penalty?

• Deterrence. Does evidence exist that the death penalty wards off any serious crime?

• Cost. Is society willing to pay the millions of dollars needed to pursue a capital sentence? Can only the most populous, wealthy counties in Colorado seek the death penalty?

• Wrongful conviction. What happens if the state finds it has executed a man who is later found innocent?

• Morality. What about the heart of the matter? Should the state kill as punishment for killing?

Hickenlooper claims it was his desire to explore all of these questions with Colorado citizens that led him to a decision so many found maddeningly inconclusive.

Either full clemency or an execution for Dunlap ends the debate, the governor said late last week. “I expect after all this coverage we’ll be able to have some serious conversation.”

That conversation has been raging in Colorado for years, a point many noted after Hickenlooper’s moral agonizing last week. The legislature came within one vote of repealing the death penalty in 2009 and held a day-long hearing on a similar bill this year before Hickenlooper’s unease helped kill it.

Death-penalty proponents say the questions have been asked and answered for decades, up through state and federal supreme courts.

“The courts have made it abundantly clear this is a constitutional penalty to impose,” said Mesa County District Attorney Pete Hautzinger.

A state divided

The conversation starts at dead center in Colorado. A 2011 poll showed 47 percent of Coloradans would repeal the death penalty in favor of life without parole, but 47 percent would not.

The most influential argument on death-penalty fairness, for Hickenlooper’s Cabinet and staff, was a review of every first-degree murder case in Colorado over 12 years by University of Denver law experts. The review found that of 500 cases meeting Colorado’s criteria for the death penalty, prosecutors sought death in only five by the time of sentencing.

Hickenlooper’s counsel, meanwhile, asked University of Colorado-Boulder researchers to find cases equally heinous as Dunlap’s four cold-blooded murders that did not result in a death sentence. There were many: children who were kidnapped, raped and murdered. A cocaine addict who killed his wife and 16-month-old son.

Those studies trained klieg lights on the question: How can the death penalty be anything but arbitrary and irresponsible?

“When I set out, I had no idea the numbers would be this compelling,” said Justin Marceau, one of the DU law professors.

Prosecutors counter that the very low number of actual death-penalty results is the best proof that Colorado uses it judiciously. Arapahoe County District Attorney George Brauchler sent Hickenlooper a direct refutation of the DU study, citing the “multiple layers of safeguards afforded offenders” who might face death.

Defense attorney David Lane, who represents Edward Montour Jr. in his fight against the death penalty in Brauchler’s district, introduced the DU study in his defense last summer. He points out that decisions to seek death can vary by location across the state — with Arapahoe County leading the way.

All three current death-row inmates and the state’s only two pending death-penalty cases — Montour and accused Aurora theater shooter James Holmes — involve the 18th Judicial District.

“You don’t have to go far to find unfairness in the system,” Lane said. “It’s not random that all these cases came out of the ‘Bloody 18th,’ as I call it. Do we want a system where one prosecutor is madly in love with the death penalty and seeks it all the time, while others never seek it despite the fact they also have horrible murders?”

Such studies are egregiously selective and have been rejected by courts in constitutional challenges, said Brauchler. The 12-year DU study started with 1999, conveniently leaving out a previous flurry of death-sentence cases in “six or seven other judicial districts,” he added.

The fact the current death-row cases in Colorado involve three black men in one county is a “historical and statistical anomaly,” Brauchler said.

Michael Radelet, a sociology professor at the University of Colorado who has researched the death penalty for decades, notes that fairness also demands a look at race — not just the race of the accused killer, but of the victims.

Analyzing Colorado cases in which the death penalty was sought from 1980 to 1999, he found death was more likely to be pursued in crimes involving white victims. In some, even when multiple murder victims were black or Hispanic, the death penalty “wasn’t even in the picture.”

Although white, non-Hispanic individuals accounted for 54 percent of all homicide victims during that period, they accounted for 81.8 percent of the victims in cases where prosecutors sought the death penalty. In a 2006 law-review article explaining his findings, Radelet noted that the probability of facing the death penalty was 4.2 times higher for defendants alleged to have killed whites.

“Opinion about the death penalty is very fluid,” Radelet said. “But the more people learn, the more likely they are to reject it — not because they don’t like the death penalty in theory, but they don’t like the way it’s applied, and they don’t see it as a priority for the use of our scarce resources.”

“DNA has broken through in cases everyone thought they had the right defendant,” said Richard Dieter, the DPIC’s executive director. “That has put a scare into the system, a scare into the confidence that the system always gets it right.”

Colorado has no issues of doubt in death-penalty convictions, countered Brauchler, in large part because of the high bar set for seeking the sentence. Prosecutors and juries must by law weigh mitigating factors in considering a death sentence.

“Why look to other states? Why not look to Colorado and how it’s actually done here,” he said. “We don’t seek death on ‘whodunit’ cases.” Even nationally, Brauchler added, opponents have not been able to document a credible case of someone wrongfully executed “in the modern era.”

But from decades ago, Colorado does have the case of 23-year-old Joe Arridy, convicted of sexually assaulting and killing a 15-year-old Pueblo girl in 1936. False and coerced “confessions” and other evidence of his innocence, coupled with his IQ of 46 and apparent mental disability, didn’t stop him from dying in the gas chamber in 1939.

Does even the possibility of execution, however statistically remote, deter criminals from killing?

Both sides of the argument lay claim to evidence concerning the death penalty as a deterrent. The Heritage Foundation and others cite a study from Emory University, analyzing murder rates in states whose policies change, claiming one execution can prevent 18 murders.

Prosecutors argue for a more immediate deterrent factor. Brauchler noted that Montour, already serving a life sentence for killing his daughter, subsequently beat a prison guard to death. He would not have had that opportunity in isolation on death row.

On the other side, the DPIC touts statistics that show states without the death penalty have a lower murder rate than those that still execute criminals.

But measuring a killer’s motivation remains a tricky proposition.

“It’s very difficult to prove it has any deterrent effect, I agree,” said prosecutor Hautzinger. “That doesn’t mean it’s not a just punishment. There are some crimes that are so heinous and beyond the pale that society has the right to extract the ultimate punishment.”

Dieter acknowledges that arguing against the death penalty remains easier in the abstract than in relation to a specific crime.

“People oppose unfairness,” he said, “but when it comes down to the description of a murder, its grisly details and victims, that sort of erases some of that.”

Relatives of murder victims often make compelling arguments about the need for the death penalty as a tool for justice, retribution, closure — or all of these.

The father of slain Limon corrections worker Eric Autobee has disassociated himself from prosecutors’ efforts to impose the death penalty on Montour.

“People out there think death is the answer, and it’s not,” said Bob Autobee. “I may support the governor if he’s willing to listen and try to make things right, to get rid of the death penalty and straighten out prisons.”

The legal cost

The high cost of prosecuting a death-penalty case has swayed some moderates to favor ending the practice. Such efforts can cost millions of dollars each in public resources.

“Why are we throwing tens of millions down this rat hole of vengeance for no measurable gain of any kind?” Lane asked.

Backers of continuing the death penalty, though, cite their own cost argument. Colorado’s penalty, as imposed, is unfair, they agree — but only because small and medium-sized counties can’t afford to prosecute a capital case.

The public defender system allows death-penalty opponents to concentrate most of the state’s resources on one murder case, argued Hautzinger, the Grand Junction prosecutor. Counties, meanwhile, fund most prosecution costs themselves. Therefore, only Denver’s metro counties can pursue a death case.

“It’s dysfunctional and bass-ackwards,” Hautzinger said.

The deepest death-penalty question is, these days, the most avoided. It’s a daunting and time-consuming task to change peoples’ minds — either way — on the base question of who deserves the power to take life.

Hickenlooper said the public for now will benefit most from facts about lack of deterrence, high costs and unfairness. “A number of people didn’t know we still had the death penalty. How could that be?” he asked.

Others remain ready to tackle the very premise of a death sentence.

“I don’t think you can start the discussion without looking at both the nationwide and international movement away from execution,” said Colorado State Public Defender Doug Wilson. “Morality has to be on the table. Then, as you get more specific, you talk about our statute.”

Sentenced to death in Colorado

Colorado last executed a convict in 1997. Here’s a summary of that case and those of the three men currently on death row in the state.

GARY DAVIS

The state executed Davis by lethal injection on Oct. 13, 1997 — 11 years after he kidnapped and raped 33-year-old Virginia “Ginny” May near her Byers home and then shot her 14 times with a .22-caliber rifle.

It marked the first time in 30 years that Colorado carried out a death sentence. Davis’ wife, Rebecca Fincham Davis, got life for her role in the crime.

Davis was the first person executed in Colorado since June 2, 1967, when Luis Jose Monge was put to death for the murder of his wife and three of his children.

NATHAN DUNLAP

Dunlap was found guilty of murdering four employees and severely wounding another at his former workplace, Chuck E. Cheese’s, in a 1993 crime.

Dunlap, 19 at the time, was sentenced to death. His attorneys have argued that Dunlap showed signs of mental illness.

Dunlap was scheduled to be executed in August before Gov. John Hickenlooper announced he had given him a temporary, but indefinite, reprieve to life in prison.

SIR MARIO OWENS

Owens was convicted in 2008 and sentenced to die for killing Javad Marshall-Fields and Vivian Wolfe.

Marshall-Fields was to testify against Owens, now 28, and his accomplice, Robert Ray, for the murder of a man at an Aurora park in 2004. But Marshall-Fields and Wolfe, his fiancée, were shot and killed on the eve of that trial.

ROBERT RAY

Ray also was convicted of murder and sentenced to die for the killings of Marshall-Fields and Wolfe.

Prosecutors said Ray, now 27, ordered the hit on Marshall-Fields out of fear of losing a $40,000-a-month business empire that was funded largely through cocaine sales.

A brief chronology of the death penalty in Colorado

1859: John Stoefel, who committed the first murder in Denver, also became the first person killed by legally mandated execution in Colorado.

1861: Colorado adopts a formal death-penalty law.

1889: New law requires all executions be conducted at the state prison in Cañon City.

1897: Death penalty abolished in Colorado.

1901: Death penalty reinstated.

1934: Colorado becomes the second state in the nation to adopt lethal gas as the execution method. Previous executions were performed by hanging.

Kevin Simpson has covered a wide variety of topics at The Denver Post while working as a sports writer, metro columnist and general assignment reporter with a focus on long-form pieces. A graduate of the University of Missouri, he arrived in Colorado in 1979 and spent five years covering sports at the Rocky Mountain News before joining The Post.

Michael Booth was a health care & health policy writer at The Denver Post before departing in 2013. He started his journalism career as an assistant foreign editor at The Washington Post before moving with family to Denver and taking a brief stint with the Denver Business Journal. During a 25-year career at The Post, he covered city and state politics, droughts, entertainment and wrote Sunday takeouts, and was part of two Pulitzer Prize-winning teams for breaking news coverage.

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